Karnataka High Court
K R Arun vs State on 10 March, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.1059/2011
BETWEEN:
K.R.ARUN
S/O K.Y.RADHAKRISHNA SETTY
PROPRIETOR CUM REG. PHARMACIST
M/S. HINDUSTAN DRUG CENTRE
NO.422/423-108, ASHOKA ROAD
MYSURU. ...PETITIONER
(BY SRI DESUREDDY, ADVOCATE)
AND:
STATE
AT THE INSTANCE OF T.P.SUJITH,
DRUG INSPECTOR, CIRCLE-I,
MYSURU. ...RESPONDENT
(BY SMT. RASHMI JADHAV, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C PRAYING TO SET
ASIDE THE ORDER DATED 17.01.2007 PASSED BY THE III
ADDITIONAL CHIEF JUDICIAL MAGISTRATE, MYSURU IN
C.C.NO.355/1994 AND ORDER DATED 20.08.2011 PASSED BY
THE PRESIDING OFFICER, FAST TRACK COURT-V AND MACT,
MYSURU IN CRIMINAL APPEAL NO.69/2007.
THIS CRIMINAL REVISION PETITION COMING ON FOR
FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
2
ORDER
This revision petition is filed to set aside the order passed by the III Additional Chief Judicial Magistrate, Mysuru in C.C.No.355/1994 vide judgment dated 17.01.2007 and also set aside the judgment affirmed by the Fast Track Court-5, Mysuru passed in Crl.A.No.69/2007 vide judgment dated 20.08.2011.
2. The factual matrix of the case is that, the Drug Inspector having jurisdiction and being a Public Servant had filed the complaint stating that this petitioner being the Proprietor cum Registered Pharmacist of Firm running under the name and style M/s. Hindusthan Drug Centre, Ashoka Road, Mysuru and when the complainant visited the shop of this petitioner on 24.09.2003, he found certain drug stocked labeled as "physician sample not to be sold" and also found certain drugs for which the accused has failed to produce purchase invoice and with the stock for sale three items of drugs labeled as "physician samples not to be sold" mentioned in Form No.5 and thereby, the accused committed the offences punishable under Sections 18(a)(VI) and 27(d) of Drugs and Cosmetics Act, 1940 read with Rule 65(18) of Drugs and Cosmetics Rule, 1945. 3
3. It is also an allegation that, on the same day, the accused did not produce the purchase invoices of four items of drugs mentioned in form No.15, 16 and 17 which were sought vide notice under Rule 65(6) of Drugs and Cosmetics Rules, 1945 and thereby, the accused committed an offence punishable under Sections 18(a)(VI) and Section 27-D of Drugs and Cosmetics Act, 1940 read with Rule 65(Vi) of Drugs and Cosmetics Rules, 1945. Based on the complaint, the Trial Court took cognizance of the offence and accused was secured.
4. The prosecution in order to prove their case, relied upon the evidence of P.Ws.1 and 2 and got marked the documents as Exs.P1 to P31 and also relied upon M.Os.1 to 157. The petitioner also examined one witness as D.W.1 and got marked the documents as Exs.D1 to D3.
5. The Trial Court, after considering both oral and documentary evidence placed on record, convicted the petitioner for the said offences and sentenced to undergo simple imprisonment for a period of one month and to pay fine of Rs.3,000/-. In default, to undergo simple imprisonment for a further period of one month.
4
6. Being aggrieved by the said order of conviction and sentence, the petitioner herein has filed Crl.A.No.69/2007 and the Appellate Court, after considering both oral and documentary evidence placed on record, on re-appreciation, dismissed the appeal, but modified the sentence enhancing as one year. Hence, the present revision petition is filed before this Court.
7. Learned counsel appearing for the petitioner though would vehemently contend that the Trial Court first of all committed an error in appreciating the evidence available on record, the counsel would also vehemently contend that in the appeal filed by the revision petitioner, the Appellate Court enhanced the sentence and before enhancing the sentence, not heard the revision petitioner.
8. However, learned counsel appearing for the petitioner not arguing the matter on merits, by relying upon the several judgments of this Court and the Apex Court, prays this Court to enhance the fine amount, instead of sentencing the petitioner for imprisonment.
5
9. In support of the said contention, the learned counsel appearing for the petitioner relied upon the judgment in the case of M/S. CITY MEDICALS & OTHERS VS. ASSISTANT DRUG CONTROLLER reported in 2011(2) Drugs Cases (DC) 307 and brought to the notice of the Court that in the said case also, similar offences are invoked under Section 18(A)(6) read with Rule 65(18) and Section 27(d) of Drugs and Cosmetics Act, 1940 and Rules, 1945, wherein only enhanced the fine amount and set aside the imprisonment.
10. The counsel also relied upon the judgment of this Court in the case of A.V. MURTHY S/O. ANAND SHETTY VS. STATE-BY DRUGS INSPECTOR reported in 2010(1) DRUGS CASES (DC) 1, wherein also similar offences are invoked in the said case and set aside the order of imprisonment by enhancing the fine amount.
11. The counsel also relied upon the unreported judgment of this Court in CRL.A.NO.1309 OF 2003 dated 18.11.2003. The counsel also relied upon unreported judgment of this Court in CRL.A.NO.893 OF 2013 dated 01.04.2015. 6
12. The counsel also brought to notice of this Court the judgment of this Court in the case of M/S. GOODWILL DRUGS & PHARMACEUTICALS PVT. LTD. AND OTHERS VS. THE STATE OF KARNATAKA reported in 2010(1) DRUGS CASES (DC) 184, wherein also offence under Section 18(a)(i) and Section 27(d) of Drugs and Cosmetics Act, 1940 are invoked and set aside the imprisonment.
13. The counsel also relied upon the judgment of the Apex Court in the case of STATE OF ORISSA AND JANMEJOY DINDA passed in CRL.A.NO.219 OF 1998 dated 20.02.1998. In this case also, instead of sentence, the Apex Court ordered to pay the fine amount.
14. Per contra, learned High Court Government Pleader for the State would submit that though in these matters this Court set aside the order of sentence and ordered to pay fine, in M/s. City Medicals' case, taking note of fine amount of Rs.500/-, the same was enhanced to Rs.5,000/-. In A.V. Murthy's case, reduced the fine to Rs.2,500/-. In Crl.A.No.1309 of 2003, enhanced the fine to Rs.5,000/- instead of 7 imprisonment and In Crl.A.No.893 of 2013 also, enhanced the amount of fine to Rs.20,000/-.
15. Learned counsel appearing for the petitioner referring the judgment in the case of M/s. Goodwill Drugs and Pharmaceuticals Pvt. Ltd. would submit that the fine of Rs.25,000/- was imposed instead of imprisonment and quantum of sentence is reduced till the raising of the Court.
16. Having heard the respective counsel and also on perusal of the material on record, particularly in the case on hand, the allegation against the petitioner is that he was keeping the physician samples which are not for sale and there was no invoice for having purchased the same and where it has been procured. Hence, the Drug Inspector, when inspected found these materials. Hence, invoked the offences under Sections 18(a)(VI) and 27(d) of Drugs and Cosmetics Act, 1940 read with Rule 65(18) of Drugs and Cosmetics Rule, 1945.
17. This Court also, considering the similar set of facts and circumstances, imposed fine in almost all the cases, instead of imprisonment and also reduced the fine in the matters which 8 have been referred (supra). Having taken note of the gravity of the offence, allegation made against the petitioner herein, the offence invoked against the petitioner and taking note of the fact that the incident is of the year 2003 and almost two decades have elapsed for now and also the principles laid down in the judgments referred (supra), instead of sentencing the petitioner to undergo simple imprisonment for a period of one year, it is appropriate to reduce the imprisonment to fine. In the cases referred (supra), this Court enhanced the fine, instead of imprisonment.
18. Having taken note of said fact into consideration, in the case on hand, fine of Rs.3,000/- is imposed along with simple imprisonment for a period of one month by the Trial Court and in the criminal appeal, the same was enhanced to one year with the same fine of Rs.3,000/-. Hence, it is appropriate to enhance the fine of Rs.3,000/- to Rs.30,000/-, instead of sentencing the petitioner to undergo simple imprisonment for a period of one year as ordered by the Appellate Court.
19. With these observations, the criminal revision petition stands disposed of. The petitioner is directed to pay the 9 balance fine amount of Rs.27,000/- within four weeks from today deducting the fine of Rs.3,000/- which has already been paid.
Sd/-
JUDGE ST